Judicial Body: London’s Old Bailey
An Op-Ed by Valérie Paulet
Despite his acquittal, the trial of Colonel Kumar Lama in the United Kingdom goes to proving the relevance of universal jurisdiction.
In 1961, Adolf Eichman was arrested in Argentina and subsequently convicted in Jerusalem. To many, this was considered the first universal jurisdiction case: the prosecution of international criminals, wherever the crime took place and regardless of the nationality of the suspects or the victims. This historical milestone was followed by others: the arrest of Augusto Pinochet and the convictions of Pascal Simbikangwa and Hissène Habré, to name but a few.
In September 2016, the United Kingdom (UK) closed its second trial on universal jurisdiction cases: that of Colonel Kumar Lama. The Nepalese Colonel was arrested in early 2013 during a personal visit to the United Kingdom. He was indicted for the alleged torture of two detainees during the civil conflict in Nepal.
Mr. Lama’s trial started on 24 February 2015 at London’s Old Bailey. After a rather complicated trial, he was finally acquitted of all charges for lack of evidence.
Does this acquittal represent a step backwards for international justice? Certainly not, for at least three reasons.
The UK walked the talk
Firstly, the case of M. Lama demonstrates how seriously the United Kingdom takes its obligation to investigate and prosecute torture allegations. The Metropolitan police service, with the support of local NGOs, sought evidence with a thoroughness that has so far escaped Nepal.
Sufficient financial means were also allocated to the inquiry, despite criticism from some domestic parties. The case of Faryadi Sarwar Zardad (2005) had already proved the United Kingdom as a strong promoter of universal jurisdiction, ready to invest human and financial resources to bring these cases to justice.
Taking diplomatic risks
Secondly, the UK took a diplomatic risk by arresting M. Lama, which is rare enough to be saluted. Indeed, the Colonel was not only serving in his national army but also in the UN Peacekeeping mission in South Sudan.
All too often, States renounce prosecuting eminent figures to preserve their diplomatic relations. As recently as 2015, Spain dropped its Tibetan genocide case under the pressure of the Chinese government. It even restricted its national legislation to make sure they would not face more political hazards.
France had also followed this path in 2014, allowing the head of the Moroccan secret services to leave the country despite his indictment for torture.
A way to justice
Thirdly, M. Lama’s case showed many victims what universal jurisdiction is: a way to justice. Ten years after the Peace Agreements, Nepal has not opened a single trial for the countless claims of torture lodged before its courts.
This trial sends a strong signal to Nepal and to other countries in post-conflict transition, where justice can be traded off for a hasty (and superficial) national reconciliation. For victims in Colombia, Salvador, Chad and elsewhere, the case of M. Lama proves that there are fewer safe havens for war criminals than ever before – and that is exactly what universal jurisdiction is about.
Valérie Paulet, Trial Watch Coordinator
Nepalese colonel Kumar Lama has been acquitted of the charges of torture he faced in the United Kingdom.
On 6 September 2016, after a 3-years legal battle, the UK Crown Prosecution Service decided against re-trying M. Kumar Lama after a jury failed to reach a verdict last August. The former colonel of the Nepalese army has been cleared of all charges.
This outcome is a disappointment for the victim who had brought evidence on the torture he endured, but also for countless Nepalese victims of torture seeking justice and the NGOs defending them.
Kumar Lama was the first serving security officer to be arrested and tried outside Nepal for crimes committed during the 1996-2006 civil war, under the principle of universal jurisdiction.
Silver lining
Nevertheless, the fact that a senior foreign military figure was arrested and prosecuted in a third country is a significant step forward. TRIAL International welcomes the United Kingdom’s commitment to its international obligations and hopes that this precedent will soon be followed by more universal jurisdiction cases – be there on Nepal or other countries.
This case is also an opportunity to call on Nepal to end impunity for suspects of international crimes. It is high time the State met its obligations to investigate cases of torture and enforced disappearances.
Read TRIAL International’s annual report on universal jurisdiction
TRIAL (Swiss Association against Impunity) welcomes the arrest of Nepalese Colonel Kumar Lama in the United Kingdom on suspicion of torture. Following the condemnation of the arrest by senior figures in the Nepalese government, the organisation calls on Nepal to show solidarity with victims of the conflict and fully cooperate with the UK investigation of Col. Lama.
TRIAL noted that Article 9 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (to which Nepal is a party since 14 May 1991), establishes that States Parties shall afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of alleged perpetrators of torture, including the supply of all evidence at their disposal necessary for the proceedings.
In recent days, senior members of the government of Nepal deemed the UK’s arrest of the accused colonel an attack on the nation’s sovereignty and demanded his immediate release, disregarding its own obligation to cooperate with the UK and the international legal obligations on all States to prosecute or extradite suspected torturers.
“The arrest of Col. Lama in the UK is fully in line with international law and is the natural consequence of the government of Nepal’s failure -more than six years after the signing of the Comprehensive Peace Agreement- to investigate and bring to trial those responsible for committing serious human rights violations during the conflict” said Philip Grant.
In its outcry over the arrest, Nepalese officials also alluded to the fact that the country is undergoing a transitional period during which bills are being discussed to create mechanisms that address past incidents of human rights violations.
In November 2012, the United Nations Human Rights Committee established that“there is no certainty that the bills on this matter will be passed as laws and if yes, when they will be passed as laws and the consequences for the victims”. At the beginning of January 2013 the UN Human Rights High Commissioner for Human Rights expressed deep concern for the Ordinance on Investigation of Disappeared People, which would empower a planned Truth and Reconciliation Commission to grant amnesties to perpetrators of crimes and gross violations committed during the conflict. High Commissioner Navy Pillay stated that this would be contrary to international law. It is thus clear that transitional justice mechanisms in Nepal that can be considered in line with international standards unfortunately will not be established soon. “Before such transitional justice mechanisms are fully functional, additional years of State idleness will have passed. Justice already too long delayed will be irrevocably denied to thousands of victims of Nepal’s conflict,” added Grant.
The large number of communications against Nepal pending before the UN Human Rights Committee concerning violations committed during the conflict, as well as numerous reports by national and international organisations highlighting the entrenched impunity in the country are a sad indication that there is little prospect of success of an investigation and prosecution of perpetrators in the country’s domestic criminal justice system.